As we all know, both women and men can be perpetrators as well as victims of sexual harassment. However, as a practical matter, women are more likely than men to be victims.
To stem the rising tide of sexual harassment claims, most responsible employers have become significantly more aggressive in terms of their preventive and corrective actions. This includes not only policies and procedures but also supervisory training.
In theory, this should work to the benefit of women. In reality, these corporate efforts sometimes hurt the women they should be empowering.
This article discusses the unintended side effects of sexual harassment prevention and correction programs and strategies to minimize these adverse effects.
In order for conduct to be actionable as sexual harassment, among other requirements, it must be "unwelcome." No matter how offensive conduct may be, if it is not "unwelcome," it is not actionable.
If an employee indicates that conduct is unwelcome by telling the employee engaging in it or by using the employer's complaint procedure, then it is clear that the conduct is unwelcome. However, the reverse is not necessarily true.
The failure of an employee to protest and/or complain does not automatically kill a sexual harassment complaint. Indeed, in the seminal case on this issue, Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the United States Supreme Court held that the plaintiff could proceed with her sexual harassment claim, even though she admittedly had sexual intercourse with her manager between 40 and 50 times. Per Justice Rehnquist, the issue was not whether the intercourse was "voluntary" but rather whether it was "welcome."
While an employee's failure to protest and/or complain does not necessarily mean that the conduct was welcome, the failure of an employee to complain may provide an employer with a defense. In 1998, in Faragher v City of Boca Raton, 118 S.Ct. 2257 (1998) and Burlington Industries v. Ellerth, 118 S.Ct. 2275 (1998), the Supreme Court held that, while an employer is strictly liable for sexual harassment engaged in by a supervisor which involves a tangible employment action (for example, discharge, demotion or denial of promotion), in the absence of a tangible employment action, an employer can defend by proving that:
(1) the employer exercised reasonable care to prevent and correct promptly any sexual harassment; and
(2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
However, the failure to complain does not automatically result in the availability of the affirmative defense. The litigation issue is whether the employee's failure to complain was unreasonable.
In the absence of a clear rule that an employee's failure to complain at work precludes a sexual harassment claim (in terms of either the elements of the employee's claim or the employer's affirmative defense), employers have a clear incentive to take action in response to objectionable behavior, even in the absence of any complaint. While in theory this is desirable, the practical impact may be dangerously paternalistic. More specifically, unsolicited corrective action may take on the appearance of paternalist rescuing.
Of course, this is not to suggest that employers can or should ignore inappropriate behavior about which they have received no formal complaint. However, employers also must be sensitive to the manner in which they proactively take corrective action.
When remedying inappropriate behaviors in the absence of a specific complaint, employers should be careful not to state or even suggest that they are "protecting" those they believe are most likely to be offended by the conduct. For example, a manager shouldn't say something like: "That joke is demeaning to the women in this room."
Focusing on those who may be most likely to be offended is offensive for at least three reasons:
First, it makes these individuals the focus of the corrective action. This may make them as uncomfortable as the conduct being corrected.
Second, it suggests that, if they were not present, the conduct would be okay. By analogy, is a Jewish joke okay if no one Jewish is in the room?
Third, the negative implication is that others not personally maligned will be indifferent. Just as you don't need to be of color to be deeply offended by racism, you don't need to be female to be deeply offended by sexism.
So, instead of focusing on who you think may be offended, the focus should be on the company's objective standards of appropriateness or professionalism independent of whether any particular employee is or could be offended. If a manager wants to personalize it, he or she should be trained to say "I am offended."
Even if conduct is unwelcome, it also must be "objectively offensive" for it to serve as the predicate for a sexual harassment complaint. The question is how to define "objectiveness."
In other contexts, the courts have applied a theoretically gender neutral "reasonable person" standard to determine objectiveness. However, in the context of sexual harassment cases, some courts apply a reasonable woman standard.
Under the reasonable woman standard, the gender of the complainant is relevant in determining whether the conduct about which he or she has complained is objectively offensive. In the seminal case articulating the reasonable woman, the 9th Circuit reasoned that "a complete understanding of the victim's view requires, among other things, an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women." Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991).
To enable men to appreciate how they may unintentionally but nonetheless inappropriately make women feel uncomfortable, harassment training programs often focus on the differences in perspective associated with gender. While this focus may be beneficial in sensitizing men, the focus also can be dangerous in terms of stereotyping.
There is a fine line between sensitizing about differences between groups and stereotyping about groups. Gender is but one factor which "may" affect perspective but it by no means dictates perspective.
Accordingly, when training on the reasonable woman standard, it is important that employers make clear that there is as much diversity among women as there is between women and men.
But even where an employer emphasizes diversity in perspective among women, there is another problem with emphasizing the "gender gap" - it may cause men to be so afraid of women that they avoid them altogether.
In some cases, what is sexual harassment is clear. Only a troglodyte (and there still are many of them) would think it's okay to ask a subordinate to share a hotel room with him.
In other cases, what is sexual harassment is less clear. When is dinner after work an appropriate business dinner and when is it, or when may it be perceived as, a date?
The message of training often is "stay away from the gray." For some men, that means staying away from social and other informal interactions with women.
The fact is that some of these men might have refrained from mentoring women anyway, but the training gives them "cover" for the avoidance which is in fact gender discrimination. Avoidance in the form of discrimination is a very real risk unless managers are given clear guidance on how they can mentor and interact safely with members of the opposite sex (or of the same sex where sexual orientation is an issue).
For example, a male manager understandably might have concerns about asking a female employee to go with him for a drink after work, even where his only intent is to bond with her in a nonromantic way as he has done with similarly situated male employees. The solution for the male manager is not to skip the bond, but to skip the bar and substitute a coffee house instead.
This is but one of many examples of the kind of direction employers should provide to management. In the absence of specific guidance in this area, mentoring of women will suffer significantly, and so will the business.
The potential damages in harassment cases can be exorbitant. Accordingly, employers have a clear incentive to take corrective action when they see anything which could be argued to be harassment.
At the same time, employers do not want their corrective actions to be used against them in litigation. Accordingly, employers are better off avoiding the legal label when taking corrective actions and focusing on the inappropriateness/lack of professionalism of the problematic conduct.
When the substantial incentive to take corrective action is coupled with the importance of focusing on inappropriateness as opposed to unlawfulness, most employers define "inappropriate" broadly, having a zero tolerance policy for anything potentially problematic. While having a zero tolerance policy on inappropriate behavior sounds good in theory, it also can dangerously undermine the seriousness of hard core harassment.
Don't we trivialize "f-- me or you're fired" when we apply the same label to "oh f--"? If everything is harassment, then nothing is harassment.
Not everything which is impolite or unrefined is harassment. Employers need to acknowledge that in training so that they don't create expectations which are not realistic.
Managers also need to be prepared, at times, to tell an employee that something is not harassment. An employee may respond by saying they perceive it to be harassment. However, an employee can perceive a chicken to be a duck but it's still a chicken. For legal purposes, the perception must be reasonable.
But perhaps the biggest problem with sexual harassment prevention programs is that they can divert attention from often a more serious problem - conscious and unconscious gender bias resulting in a glass ceiling. As we all know, the glass ceiling is the invisible but sometimes impenetrable barrier which makes it more difficult for women of talent to rise as high as men of the same (or even lesser) talent.
On April 4, 2006, the EEOC issued a press release indicating its intent to make fighting systemic discrimination a top priority. Employers should anticipate that many of these efforts will focus on power positions (since most organizations don't discriminate against women in support roles).
The changes to the EEO1 reporting requirements effective January 1, 2007 will help the EEOC prove their cases. Starting in 2007, employers no longer will report on officials and managers generally. Instead, employers will need to distinguish between "executive/senior level officials and managers" on the one hand and "first/mid level officials and managers" on the other hand. This distinction will force employers to create reports which may highlight their own glass ceilings.
There are myriad causes for the glass ceiling and the causes often differ from one organization to another. However, a common theme in many glass ceiling cases is how informal relationships may deprive women of equal access to information and opportunities.
Employers need to be careful to make sure that they don't focus on covert harassment at the expense of more subtle but equally pernicious gender bias. Moreover, employers must make sure that harassment prevention programs do not strengthen the glass ceiling by creating a culture in which men with power avoid harassment by engaging in discrimination.
Jonathan A. Segal is a Partner with and Vice Chair of WolfBlock's Employment Services Group. His practice focuses on preventive counseling, training and policy development; adversarial proceedings, such as EEO and other administrative changes; traditional labor matters, and strategic business planning issues. He is also a frequent speaker at national, state and local human resource conferences. Author's Note: This article should not be construed as legal advice or as pertaining to specific factual situations.